Media Alliance, Inc. and v. Robert Mirch

MEDIA ALLIANCE, INC. AND STEPHEN C. PIERCE, PLAINTIFFS,v.ROBERT MIRCH, COMMISSIONER OF PUBLIC WORKS FOR THE CITY OF TROY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, AND THE CITY OF TROY; DEFENDANTS.

The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Plaintiffs Media Alliance, Inc. ("Media Alliance") and Stephen C. Pierce ("Pierce") bring this action pursuant to 42 U.S.C. § 1983 and allege that defendants violated their First Amendment right to free speech and peaceable assembly and their Fifth and Fourteenth Amendment rights to Due Process and Equal Protection. Plaintiffs also allege that defendants violated provisions of the New York State Constitution and allege the state law tort claim of abuse of process and/or government power.

Media Alliance, Inc., a not-for-profit corporation, owns and operates The Sanctuary for Independent Media ("Sanctuary") located at 3361 6th Avenue, Troy, New York. Most members of the Board of Directors of Media Alliance, including Pierce (the executor director) and his wife, Branda Miller, were Arts professors at Rensselaer Polytechnic Institute ("RPI"). The Sanctuary offers a venue for artistic and political expression.

Building Permit and Classification of Use Prior to Media Alliance's occupancy, the 6th Avenue building was used as a church and a puppet theater. In July 2005, plaintiffs applied to the Bureau of Code Enforcement for a building permit for the property. In the building permit application, plaintiffs proposed, "to convert an existing church into a media broadcast/production facility for film video and audio. Minor repair, missing ceiling tiles, touch up painting, etc. Same layout". In August 2005, the Zoning Board of Appeals granted a special use permit for a change of non-conforming use to allow conversion of the former church into a media production studio. In August 2005, the Planning Board approved, with certain stipulations, plaintiffs' proposal to convert the church into a media production studio.*fn2 Russ Reeves, the Executive Secretary of the Planning Board and City Engineer, communicated these stipulations and the approval in a letter to Pierce.

At the relevant time, Don Albano was the Building Plans Examiner in the Bureau of Code Enforcement. Albano testified about the process for reviewing proposals and plans. Albano testified that he would review the construction documents and determine the classification of use pursuant to the New York State Building Code. If Albano was satisfied that the construction would be in compliance with the building code, a permit was issued. Once the work was started, the applicant was required to call for an inspection. After the inspector "signed off" on the job, a Certificate of Occupancy was issued (if required) provided the applicant complied with the zoning and planning board stipulations.

With respect to plaintiffs' proposal, Albano testified that he reviewed the plans and requested an opinion from plaintiff's architect, Joe Fama of Troy Architectural Program ("TAP") regarding the proper classification of use for the building. Chapter K-8 of the Building Code provided the following classifications for assembly uses:

A-1 is assembly uses, usually with fixed seating, intended for the production and viewing of the performance arts or motion pictures including, but not limited to: Motion pictures theaters Symphony and Concert Halls Television and radio studios admitting an audience Theaters.

A-3 Assembly uses intended for worship, recreation or amusement and other assembly uses not classified elsewhere in Group A, including but not limited to: Amusement arcades Art galleries Bowling alleys Churches Community halls.

On September 22, 2005, Mr. Fama provided a written opinion stating that the proposed use involved no change in occupancy, therefore the Sanctuary should remain an A-3 classification. Albano accepted that opinion. On September 28, 2005, Albano issued a building permit and on September 28, 2005, Terry DuBois, the Director of the Bureau of Code Enforcement, issued a Certificate of Occupancy to Pierce for the Sanctuary. The Certificate indicated that the Sanctuary may be occupied and used as a Media Facility provided that plaintiff completed Stipulations 1, 2 and 4 previously addressed by the planning committee by June 30, 2006.*fn3 On October 4, 2006, after the planning board stipulations were satisfied, DuBois issued a replacement Certificate of Occupancy.

On or about January 2007, Albano contacted Pierce to schedule an inspection of the Sanctuary.*fn4 On January 10, 2007, Albano and Assistant Fire Chief Tom Adams conducted an inspection of the Sanctuary while Pierce was present. Asst. Fire Chief Adams was concerned with the exits and specifically, the fact that the front doors did not swing out. Adams described this as a "safety concern".

On January 17, 2007, Albano sent Pierce a letter outlining the results of the inspection:

I have done a code analysis on the basement and 1st floor plans in regards to egress. The existing door widths and swing directions were noted on the site visited [sic] conducted on 1/10/07 with Tom Adams -Troy Fire Department. What follows are the requirements of NYSBC Appendix K 801.11.1. I have included copies of the floor plans with my mark ups and calculations. A future site visit will be arranged at your convenience. Your continued cooperation is greatly appreciated.

1) The front double doors must swing out of the building.

2) The existing 30" door in the rear of the 1st floor must be increased to at least 32" in width.

3) The existing 29" door in the rear of the basement must be increased to at least 32" in width;

4) All exterior doors which are capable of being locked or latched must be retro fitted with panic and fire exist hardware.

7) Please have the existing fire alarm system inspected and certified.

8) Please ensure all illuminated exit signs and emergency back up lighting are in working order.

In February 2007, Pierce sent Albano two emails providing information regarding plaintiffs' efforts to address the issues presented in Albano's January 2007 correspondence. On October 8, 2007, Pierce sent a letter to Albano indicating that plaintiffs intended to replace the front double doors so they would swing out of the building. In addition, plaintiffs intended to replace hardware on the front doors with panic and fire exit hardware. As of March 10, 2008, the front double doors did not swing out of the building, the rear door was not increased, the basement door was not increased and the exit doors were not retrofitted with panic and exit hardware.

Bilal Exhibit

On March 5, 2008, Wafaa Bilal, a visiting artist from the Art Institute of Chicago, lectured on the RPI campus and exhibited a video game installation entitled "Virtual Jihadi: A Night of Bush Capturing".*fn5 In Bilal's game, an Iraqi becomes a terrorist suicide bomber on a mission to assassinate President Bush. RPI was scheduled to display Bilal's game but RPI's President closed the exhibit due to controversy. On March 6, 2008, Pierce extended an invitation to Bilal to lecture and exhibit "Virtual Jihadi" at the Sanctuary. Bilal accepted the invitation and on March 7, 2008, plaintiffs issued a press release and flyer publicizing Bilal's appearance which was scheduled for March 10, 2008. Bilal was scheduled to return to Chicago on March 11, 2008. Plaintiffs claim that the March 10th lecture was an "opening lecture" and that after the lecture, plaintiffs intended to display the game for a few hours, during lunchtime, for one week. Defendants claim that they did not know that plaintiffs intended to display the installation after Bilal's March 10th event.

On March 7, 2008, defendant Robert Mirch ("Mirch"), the Majority Leader of the Rensselaer County Legislature and Commissioner of Public Works for the City of Troy, issued a press release stating that, "he is disgusted that a Troy organization would agree to host an exhibition that includes the portrayal of a suicide bomber sent to assassinate the President" and that, "he is organizing a protest of the Virtual Jihadi exhibition scheduled for the Sanctuary for Independent Media in Troy for Monday night at 5:30 p.m."

Several key events took place on March 10, 2008. In the morning, Branda Miller met with Troy Chief of Police Nicholas Kaiser. Ms. Miller asked for police protection for the event that night. Also in the morning, Pierce testified that Albano called him to advise that he would be inspecting the building "right now". Later in the day, Bilal was a guest on Al Roney's radio talk show on 810 WGY and Mirch called in to the show to debate Bilal. Also during that day, Reeves met with Albano and a member of the Fire Department to discuss concerns for potential danger at the event that evening. Sometime later in the day, Albano and Adams conducted an inspection of the Sanctuary building. Upon inspection, Albano and Adams found that four items concerning the doors, previously identified in the inspection 14 months earlier, had not been corrected. Albano told Pierce that he found code violations. Adams allowed plaintiffs to hold the event provided the doors were left open during the show. That evening, Bilal gave a two hour lecture and exhibited the "Virtual Jihadi" installation in the Sanctuary. Approximately 120 - 150 people attended the event. Pierce left the front double doors open during the event. Approximately 50 protestors, led by Mirch, picketed outside. The City of Troy provided uniformed and plainclothes police officers.

Events after Bilal's Lecture

On March 11, 2008, Bilal returned to Chicago but left his Virtual Jihadi installation at the Sanctuary. On March 11, 2008, Dave Sheeran, a code enforcement employee, called Pierce and advised that no further public assembly would be allowed at the Sanctuary until the four items concerning the doors were completed. Albano and Reeves also notified Pierce. On March 11, 2008, the Bureau of Code Enforcement issued a Notice of Violation stating, "[t]he building shall not be used as a place of assembly until the previous four items are corrected".

On March 12, 2008, Reeves sent a letter to Pierce concerning the life safety issues and provided a copy of Albano's March 10th inspection report. Pierce was advised that the Virtual Jihadi could be displayed at another venue within the City while the Sanctuary doors were being replaced. However, Pierce testified that plaintiffs were unable to find an alternate location for the Bilal exhibit because people were frightened to display the installation for fear of retaliation by the City.

One week later, Pierce and other Media Alliance board members protested outside Troy City Hall. On April 23, 2008, Albano and Reeves inspected the building. All of the violations identified were corrected and ...

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